Emory Law Professor Responds to Supreme Court Non-Decision

The following article excerpt is reprinted with express permission of the Atlanta Journal Constitution. This article appeared October 10, 2014 with related material on AJC.com. To read the complete text, please visit here.

Timothy Holbrook

Court’s Surprising Non-Decision

By Timothy Holbrook

On Monday, the Supreme Court did something no one expected: It refused to hear any of the cases striking down same-sex marriage bans.

Most observers thought the court would either grant review or delay any action to see whether any lower appellate courts would find such bans constitutional. But it didn’t wait and, by declining to hear the cases, allowed same-sex marriages to begin in Utah, Oklahoma, Wisconsin, Indiana and Virginia. In fact, wedding bells have already started to ring in Virginia.

The court’s action will impact more than those five states. Bans in other states within the jurisdiction of these appellate courts will also fall. For example, the decision by the U.S. Court of Appeals for the Fourth Circuit only addressed Virginia’s marriage ban. But the Fourth Circuit also covers West Virginia, North Carolina and South Carolina, all of which ban same-sex marriage. Those states will soon have to allow same-sex couples to marry, as will Wyoming, Colorado and Kansas. In total, 30 states will soon have to allow same-sex marriage because of the Supreme Court.

The court’s refusal to hear these cases does not mean it has endorsed marriage equality, however. The court has not decided the issue and could address it in a future case.

From the Supreme Court’s perspective, though, at present, there is little reason to grant review. The court typically intervenes when lower courts disagree on an issue. When courts disagree, the litigants and courts will have vetted both sides of an issue rigorously. As to same-sex marriage bans, however, there is as yet no disagreement; every federal appellate court to consider the issue has found such bans unconstitutional.

The Ninth Circuit on Tuesday joined the chorus, invalidating bans in Nevada and Idaho, with bans in Montana, Arizona and Alaska soon to follow. If all the federal courts of appeal end up agreeing with each other, the Supreme Court may never have to address the issue — something the justices might find attractive.

Additionally, the Supreme Court may want some of the complexities of these issues further explored by lower courts. The legal issues are more complex than the lay observer may realize. Although every appellate court so far has found same-sex marriage bans unconstitutional, the courts have differed on the reasons why.

Some have found that, because marriage is a fundamental right, the bans violate the Due Process Clause. Others have rejected that argument, instead invalidating these bans on the grounds of equal protection. The courts also disagree on whether sexual orientation should be treated as a “suspect class,” like race or gender, which would make it more difficult for states to justify same-sex marriage bans. Even within this seemingly simple issue, there is a host of issues that may have led the court to delay intervening at this time.

The decision not to take the cases, though, is still surprising. Same-sex couples will be able to marry in the five states where courts held the bans unconstitutional. If the Supreme Court, in some future case, ultimately holds that same-sex marriage bans are not unconstitutional, there will be thousands of married same-sex couples in these states whose legal status will be in doubt. The validity of those marriages would need to be litigated, along with other collateral issues like adoption and divorce.

What does all of this mean for Georgia? In the short term, nothing. No court has found Georgia’s same-sex marriage ban unconstitutional. There is a pending lawsuit challenging the ban, but briefing on Attorney General Sam Olens’ motion to dismiss the case will not be completed until later this month. A decision will not be forthcoming for some time. Additionally, the federal appellate court in which Georgia lies, the Eleventh Circuit, has yet to address the constitutionality of these bans from any state in its jurisdiction. The ban in Georgia remains in place for now.

But soon, 35 states will allow same-sex marriages. Georgia is increasingly an outlier on this issue. Some view the Supreme Court’s action Monday as the writing on the wall for same-sex marriage bans. Federal judges in Georgia and the Eleventh Circuit may take the hint and invalidate such bans. That would put Georgia on the right side of history and keep the Supreme Court out of the issue.

Tim Holbrook is associate dean of faculty and professor of law at Emory University School of Law.

Editor’s Note:

Professor Holbrook has been actively involved with supporting and improving Emory as an inclusive place for LGBT students, faculty, and staff. He has served on the advisory board of the Office of LGBT Life for several years. He also championed a change in policy at Emory regarding recognition of same-sex marriages and other domestic partner benefits. For additional reference material, please consider the following